April 9, 2009

Recent copyright news and comment (an extended mix)

I seem to have a certain degree of inertia over getting a blog post out, and there have been at least 4 interesting recent items related to copyright. Since I haven’t managed to post about each individually, I’ll get over the hump by putting them all into a single post. I hope most of my readers will find at least one of these items of interest.

1. This year marks the 100th anniversary of the passage of the Copyright Act of 1909, the first “modern” copyright law of the US. The announcement for an April 30 conference on the Act describes its significance:

The 1909 Act was the first to protect works upon publication with notice, without prior registration; the first to expressly recognize a right to prepare derivative works; and the first to expressly recognize the public domain. The 1909 Act remained in effect for seven decades, during which time copyright law was repeatedly called upon to deal with the disruptive effect of new technologies, such as motion pictures, sound recordings, radio and television, photocopy machines, and computers. As a result, the 1909 Act had a significant influence on the copyright law we have today.

Several aspects of the law are ones I wish we still had today, like terms of more reasonable length (the maximum under the 1909 act was 56 years from publication), and the earlier expiration of copyrights into the public domain if the owner did not care enough about it to take some basic steps to maintain it (namely, including a copyright notice, and eventually registering and renewing it). Unfortunately, as William Patry laments, the treaty structures we’re now embroiled in prevent us from returning to that regime.

2. I’ve seen more discussion online of the Google Books setttlement, and the monopoly rights it gives to Google for providing digitized copies of “unclaimed” out of print copyrighted works (or what James Grimmelmann calls “zombie works“). It’s worth a reminder that it isn’t just Google that has a potential monopoly here; it’s also the Book Rights Registry itself. Even if other digitizers get the rights to do what Google does, and set their own retail prices for access, the Books Rights Registry can decide on the wholesale prices and other terms, and these will obviously play a big role in determining retail prices that any provider will offer.

If the settlement agreement is upheld (as I hope it will be; I’d much rather see 1 comprehensive collection of digitized out of print books than 0), it could form the model for a future compulsory licensing scheme for such books. Congress has enacted these before, when it’s seen a sufficient need and interest, and it’s set maximum prices for such licenses. For instance, the current maximum license fee for recording many songs is 9.1 cents per copy, reflecting a steady but controlled rise over the last few decades. According to this account of recent negotiations, some publishers reportedly wanted a dramatic boost to 15 cents per copy, while some digital music retailers wanted the maximum cut in half, to 4.5 cents per copy. Congress’ Copyright Royalty Board has managed to find a middle ground that balances the interests of creators and users, while providing a way to avoid the inefficiencies of song-by-song rights negotiation. Congress could do something similar with copyrighted but out of print books, if their constituents urged them to. (They would have to be careful to stay within international treaty constraints, but if the licensing regime for Google falls within those constraints, then I would think that a similar regime for all set up by Congress should as well.)

3. It might eventually be possible to put many of these books online in any case, if a recent decision by a federal court in Colorado is upheld and is applied broadly enough. In 1996, many foreign works were taken out of the public domain and put back into copyright as the result of a law passed as a result of the GATT treaties. (I have a discussion on copyright renewals that goes into some of the details.) Last week, a federal judge struck down this law; in the words of plaintiff attorney Larry Lessig, it “violated the First Amendment to the extent it restored copyright against parties who had relied on works in the public domain.” (Such parties are known as “reliance parties”).

I’m happy to hear about the decision, but I’m not yet ready to fire up the scanners. For one thing, another federal circuit has already ruled the opposite way on the same issue, as William Patry noted in a 2005 blog post about a case involving Luck’s Music Library. It remains to be seen how higher courts, or courts in other jurisdictions, will deal with these contradictory rulings. Also, despite some claims I’ve seen online, the decision doesn’t state outright that removing works from the public domain is necessarily unconstitutional. Rather, it says that doing so requires a higher standard of constitutional scrutiny that is not met for the case in question, in particular because Congress restricted the rights of reliance parties more stringently than international treaties actually required.

It seems possible to me that, even if the new decision survives appeal, it might simply result in an expansion of reliance party rights, and not a general right to put books online whose copyrights had been restored. (On the other hand, the definition of “reliance party” in the law in question seems to me to include libraries and others that have simply “acquire[d].. a copy” of a restored work.) I’m not a lawyer, though, and the copyright restoration laws at issue are notoriously complicated. I’d be interested in hearing more commentary from lawyers about the details and implications of this decision.

4. Finally, the recent publication in the New York Review of Books of a leaked, damning ICRC report on torture at Guantanamo raises some interesting copyright and ethics questions. As David Bigwood suspects, the report is copyrighted (effective the moment it was written down) and was published without the permission of the Red Cross, which has a general policy of opposing publication of its confidential reports. Mind you, I don’t think libraries that simply receive a print copy unsolicited (e.g. as part of of an ongoing subscription to the NYRB) should have any legal or moral qualms about keeping, preserving, and giving their patrons access to it. But what about electronic versions, which typically involve new copies made every time someone new reads them?

There are a few approaches one could take to this question. A fair use defense is certainly worth consideration, for instance. The document clearly reveals many things of great public interest in the US; it’s being published online for noncommercial purposes (they’re distributing it as a free, ad-less PDF); and there’s no market for the work to be affected, since the Red Cross does not market these reports, or put them out in the public at all. On the other hand, the document is not just quoted from, but reproduced in its entirety, and traditionally there’s been less fair use slack given for unpublished works than for published works. But there have been past cases (such as those involving Diebold voting machine memos) where reproducing documents in full in the public interest has been upheld as fair use. I suspect that the Red Cross will most likely not take the trouble to sue over this recent publication, but if they did, I can’t be positive about how the case would turn out.

One might argue that whether or not fair use applies, publication is justified as civil disobedience of copyright law in the service of a higher law against torture. This approach poses some problems of its own, though, particularly under theories where those who engage in civil disobedience gladly accept the legal consequences of their actions. Congress as of late has been steadily increasing the penalties for copyright infringement, and even the statutory and attorney’s fees, independent of any damages, are now large enough to give many people pause.

There’s also another interesting way to resolve the copyright question: A member of Congress could read the report into the Congressional Record. By law and custom, the statements of the legislature are given immunity from most forms of legal liability, so a copy of the report in the CR, including in the online verion, should not be a legal violation of copyright, as far as I’m aware. (Indeed, The Online Books Page already links to one other book that was read in its entirety into the CR.) The online version there would then be readable to anyone with an Internet connection.

Reading the report into the record wouldn’t just clear up a copyright issue. It would also put all of Congress officially on notice about the violations of American and international law by the government. And just as we have obligations under copyright treaties to deal with copyrighted works in various ways, we also have obligations under human rights treaties to outlaw prisoner mistreatment, and investigate and prosecute those who conducted, oversaw, and covered up torture and other human rights violations, no matter how high their rank or office.

In other words, we Americans now have a test before us: Do we take the essential rights of life and integrity of living, breathing human beings at least as seriously as we take the rights of intellectual property? If you think we should, you might want to urge your representatives in Congress and other governmental officials to take appropriate action.